John McCain Probes the Contours of the Judicial Debate

From an e-mail to supporters:

Today, I’d like to ask your opinion about the type of nominee you would like to see replace Justice Stevens. Country First PAC has prepared a short, three-question survey and I encourage you to share your opinion by following this link.

It’s a lovely little push-poll, designed to reinforce the idea that any Democratic nominee to the federal bench is per se liberal, and must necessarily play fast and loose with the Constitution, but it goes a little far, even by conservative standards, in pushing this myth. We see that treating the Constitution as a document “open to interpretation” is concomitant with “legislating from the bench,” and the antithesis of judicial restraint. If this is in fact the conservative position — that the Constitution is not subject to interpretation, anywhere — the “center” of the debate is now further rightward than I recall, and more grounded in fiction.

The federal Constitution is not exhaustive. And this is a feature, not a bug. Many state constitutions do, in fact, set out at length the detail and meaning of every provision. But these documents are almost always incredibly dense, only ever examined by practitioners or legislators, and cripplingly restrictive. I spent the fall working for a New York legislator on good government issues; at almost every turn, our efforts to push bipartisan, noncontroversial measures ran up against constitutional limitations that the original drafters must surely never have intended, but which now, in the fullness of time, operated to bar measures they themselves would have favored, had they been confronted with the specific question. By contrast, the federal Constitution is meant to be accessible, and simple, embodying a skeleton of principles to which time and concurrent actors can give meaning.

Accordingly, the document must be interpreted to acquire meaning, and therefore value. The Founding Generation acknowledged as much. See Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) (“It is emphatically the province and duty of the judicial department to say what the law is”). If you dispute this principle, your argument is with the men who wrote the Constitution, not with me, and not with amorphous “liberals.”

The interesting question, therefore, is what interpretation is permissible, and how far it should be permitted to expand upon the way the document worked in the first instance.

However, the minute conservatives allow their supporters to ask that question, they’ve already lost. Like so many other conservative positions, the far-right hard-line against judicial “interpretation” isn’t meant to be an argument in itself; it’s meant to be a conversation-stopper, confining friend and foe alike to a false choice between two equally untenable, almost Manichean opposites, and foreclosing the kind of complicated debates that they, and their supporters, may not be able to win. As in, if we acknowledge that our conception of equal protection has grown over time, and had to, what’s to stop it from continuing to grow?

We’ll likely win the next Supreme Court debate, if only becausethe Democrats still have a 59-seat majority in the Senate (and they probably won’t need it: Sotomayor was confirmed 68-31, with many key Republicans breaking ranks). But this is just a battle. A true victory, signaling a rout for the other side in the overarching war of ideas, would reframe the debate, and cause the public, right and left, to acknowledge that the Supreme Court is probably more complex than the Republican Party wants them to think.

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